Though the issue be born and dies before the estate descends to the wife. Co. L. 29. b. 8 Co. 35. b. Bro. Tenant per Curtesy, 12. So, by the custom of gavelkind, a man shall be tenant by the curtesy without having issue. Co. L. 30. a. (c) And by having issue, the husband, in the life of his wife, shall do homage alone. Co. L. 30. a. And an avowry shall be made upon the husband alone. Co. L. 30. a. If the husband after issues makes a feoffment, the feoffee shall hold during the life of the husband: for his feoffment was not a forfeiture. Co. L. 30. a. (d) But by the feoffment his title to be tenant by the curtesy was extinguished: and therefore, if the feoffment was upon condition, and he enters for the condition broken; he shall not afterwards be tenant by the curtesy. Co. L. 30. b. So, if he levies a fine, which is reversed after the death of his wife; his title to be tenant by the curtesy shall be extinct. Semb. 5 Mod. 67. Otherwise, if the fine be reversed by error in the life of his wife: for he has afterwards a new title. 5 Mod. 67. (D 2.) Who not. But a man shall not be tenant by the curtesy, where the wife is not seised of such estate as that the issue which her husband has by her may, by possibility, inherit the same estate. (e) As, if a woman has an estate to her and the heirs male of her body, and she has issue a daughter; her husband shall not be tenant by the curtesy. Co. L. 29. b. If a woman tenant in tail makes a discontinuance, and takes back an estate in fee, and then takes husband, has issue, and dies; the issue, by a formedon, may recover the estate tail in the life of its fuit Johannes. Therefore husband not tenant by the curtesy. H. 5 Ed. 1. rot. 1. Wighorn.-2. I cannot guess, he continues, what Lord Hale's view could be in citing this record, unless it was to shew, that anciently in the case of curtesy, the having male issue born alive could be proved by men only; which must be confessed to have been a most unaccountable peculiarity. (c) On the other hand, subjoins the Annotator, by the custom of gavelkind the tenancy is subject to several disadvantages; for it is only of a moiety of the wife's land, and it ceases if the husband marries again. See Rob. Gav. b. 2. c. 1. where the learned author suggests, that some have doubted, whether there is any such variance between the common law and the custom, and therefore undertakes to prove it by authorities on record. (d) 1. For, says Lord Coke, that the estate at the time of the feoffment, was an estate of tenancy by the curtesy initiate, and not consummate.-2. And the Annotator subjoins from Hal. MSS. 4 Ed. 2. cui in vita, 15. 34 Ed. 1. Ibid. 30. 10 Ed. 3. 11. 22 H.6. 24. If husband entitled to be tenant by the curtesy aliens, and retakes estate to him and his wife, by which the wife is remitted, he shall not be tenant by the curtesy. Contrà if it was before issue had. See Ley's Rep. 9. (e) 1. As if, says Lord Coke, a tenant make a lease for life of the tenancy to the seignioresse, who taketh a husband, and hath issue; the wife dieth; he shall not be tenant by the curtesy.-2. To which the Annotator subjoins, that Lord Coke's meaning is, that the husband shall not be tenant by the curtesy of the scigniory, it being suspended during the whole time of the marriage by the lease of the tenancy to the wife. And he refers to Perk. sect. 459. 460. 461. 462. as to the effect of suspension on curtesy. father. father: for she was not seised of the tail during the coverture. Co. L. 29. b. (f) If an estate be given to two women and the heirs of their bodies, and one of them takes husband, and has issue. 2 Rol. 90. 1.50. 2 Mod. Ca.) Cont. Co. L. 30. a. Acc. Semb. acc. Co. L. 183. Eq. Ca. 150. (2d Part of So he shall not be tenant by the curtesy of a seisin in law, where by possibility she might have obtained an actual seisin: as, if lands descend to a woman, who takes husband, has issue, and dies before entry. Co. L. 29. a. So he shall not be tenant by the curtesy of a bare right or title. Co. L. 29. a. (g) Nor, of a reversion, (h) or remainder, expectant upon an estate of freehold. Co. L. 29. a. Nor, of a seigniory, rent, or common, &c. suspended for life. Co. L. 29. b. So, if the estate of the wife determines with her life by express limitation or condition, though the wife had a fee by a subsequent remainder, or by descent, the husband shall not be tenant by the cur (f) The Annotator subjoins, the husband could not have curtesy in respect of the fee, because that was defeated by the son's recovery in the formedon; nor in respect of the tail, because the wife's feoffment before the marriage had discontinued the tail, and consequently there could be no seisin of it during the marriage. This seems to be the rationale of the case put by Lord Coke. (g) 1. Lord Coke adds, nor of a use. - 2. Upon which the Annotator observes, that an use before or not executed by the 27 H. 8. must be meant; for an use within that statute is a legal estate: see acc. 2 And. 75. 147. and by Lord Coke himself in Cro. Jac. 201. See also 1 New Abridgm. 660.-3. But though in strictness of law there cannot be curtesy of trusts, yet since Lord Coke's time our courts of equity have allowed curtesy both of trusts and other interests, which though in law were rights and titles, are deemed estates in equity, and made to conform to many of the rules and consequences incident to estates in law. See 1 Atk. 603., the case of Cashborn and Inglish, in which Lord Ch. Hardwicke, decreed curtesy of an equity of redemption. See S. C. more fully reported in Vin. Abr. Curtesy, E. pl. 23.- 4. However a wife in point of benefit may have a trust of inheritance, which may be so declared as to prevent curtesy, as by directing the profits during the wife's life to be paid for her separate use; for in such a case the intention to exclude the husband from curtesy is manifest, and he cannot have an equitable seisin. 3 Atk. 715. — 5. And though curtesy out of a trust is allowed, yet dower has been refused; a partiality not easy to be reconciled with reason, however settled by the current of authorities.-6. But, continues Lord Coke, if she or her husband had, during her life entered, he should have been tenant by the curtesy.-7. And the Annotator subjoins, but entry is not always necessary to give seisin in deed; for if the land is in lease for years, curtesy may be without entry, or even receipt of rent, the possession of the lessee for years being deemed the possession of the husband and wife. See the case of De Grey and Richardson, 3 Atk. 469. Lord Coke's doctrine about seisin, for a possessio fratris is the same. Co. Litt. 15. a.-8. And in 2 Wils. 516., the court construed the possession of a mother to be a possession for an infant her son, as his guardian by law, she being next of blood to whom the inheritance could not descend, and held it a sufficient seisin to exclude the daughters by a former venter. (h) 1. Mr. Perkins makes a quære, whether, if a woman seised in fee makes lease for life, reserving rent for her and her heirs, the husband shall not have curtesy in the rent during the lease; but he seems to admit, that the husband shall not have curtesy of the land itself, unless the lease determines before the wife's death. Perk. sect. 467.— 2. See Co. Litt. 32. a. where in a like case Lord Coke says, that the wife shall not have dower. But if a rent is incident to a reversion expectant on an estate tail, the husband shall have curtesy of the rent till the tail determines. Co. Litt. 30. a. Note to the principal position. tesy; tesy; as, if an estate be limited to the wife for life, afterwards to the first, second, and other sons in tail, remainder to the right heirs of the body of the wife, remainder to her in fee; her husband shall not have it by the curtesy. Eq. Ca. 150. (2d Part of 2 Mod. Ca.) Or, if a devise be to a woman for life, with a contingent remainder to her issue, by which the fee descends in the mean time to the woman, being heir to the testator; her husband shall not be tenant by the curtesy. R. Eq. Ca. 150. (i) (2d Part of 2 Mod. Ca.) So he shall not be tenant by the curtesy, if he has not issue born alive. If the issue be ript out of the belly of its mother, though it be alive. Co. L. 29. b. If the issue be a monster which has not human form. Co. L. 29. b. So, if after issue he be attainted for felony, and pardoned; he shall not be tenant by the curtesy, if he has not issue after the pardon. Per Keble, 13 H. 7. 17. a. Tenant in Dower; Who shall be and who not. Vide in (E) Tenant for life. (E 1.) Who shall be. Tenant for term of life shall be, when lands are demised to a man for his life. Lit. S. 56. Vide Copyhold, (C 10.) - Devise, (N 7.) Or, for the life of another. Lit. S. 56. Or, for the life of himself and several others. Co. L. 41. b. Mo. 8. So, if tenant for life, by curtesy, or in dower, grants his or her estate over, the grantee shall be tenant pur auter vie. Co. L. 41. b. So, if lands() are demised or granted to a man, generally, and livery (7) made upon it. Co. L. 42. a. (m) (i) 1. A woman taketh husband, and hath issue; lands descend to the wife; the husband enters; and after the wife is found an idiot by office; the lands shall be seised by the king; for the title of the tenancy by the curtesy and of the king begin at one instant, and the title of the king shall be preferred.-2. The Annotator subjoins, that Mr. Serjeant Hawkins makes a quære of this, observing that the fee and freehold were in the wife, and that the wife of the idiot shall have dower. Hawk. Abr. of Co. Litt. 42. But that it has been also remarked, that there is not any concourse of titles, between the king and the husband; the husband's title by curtesy not being consummate till the death of the wife, when the king's title determines. See Plowd. 264. Engl. ed. in a note by the editor. However note the reasoning in Plowden.-3. See also 8 Co. 170, where it is adjudged, that though in the case of idiotcy the office for some purposes has relation to the time when the idiot's estate commenced, yet the king is only entitled to the profits from the finding of the office; which as it may have some influence on the point of curtesy, is proper to be attended to. (k) Or tenements, reversions, remainders, rents, advowsons, commons, or the like. Co. Litt. 42. a. (Or due ceremonies requisite by law, be performed. Co. Litt. 42. a. (m) 1. The Annotator from Lord Hale's MSS. subjoins, Litt. s. 283. But if termor for years devises his house generally without shewing what estate, the whole term passes. 14 Eliz. Dy. 307 -2. Lord Coke continues, the same law is of a declaration of a use. 3. And Lord Hale subjoins. 21 H. 8. 5. by Shelley. And And such demise or grant to another, generally, by tenant in fee, shall be an estate to the lessee for his own life. Co. L. 42. a. (n) By tenant in tail, it shall be for the life of the lessor: for that is all which he can lawfully grant. Co. L. 42. a. So a demise to another for a time indeterminate, passes for life, if livery be made; or of things which lie in grant, without livery: (0) As, a lease to a man quamdiu se bene gesserit. Co. L. 42. a. To a woman durante viduitate; or, dum sola. Co. L. 42. a. Co. L. 42. a. To A. as long as he inhabits. Co. L. 42. a. Or, pays such rent. Co. L. 42. a. Or, till he be preferred to such a benefice. Co. L. 42. a. Or, till out of the profits he has paid 100%. or other sum. Co. L. 42. a. (p) Or, during his exile, if he be absent from his country; though not by edict, but voluntarily. R. 1 Vent. 326. So, if the king grants office at will, and a rent for it for his life; he has an estate for life in the rent, though it determines with the office. Co. L. 42. a. (E 2.) What interest he has. Tenant for life has a (q) freehold, as well as tenant in fee, or tail. Co. L. 43. b. So (n) The Annotator from Hal. MSS. subjoins. Vid. 8 E. 3.3. A lessee for life makes lease to B. & C. on condition that if they die leaving A. then the land shall revert to A. without determining auy estate certain in the grant. All the estate passes under the condition, for in præcipe A. was not received in default of B. & C. (0) 1. And, says Lord Coke, in count or pleading he shall allege the lease, and conclude that by force thereof he was seised generally for term of his life.-2. To which the Annotator subjoins from Hal. MSS. A. leases to B. till A. makes J. S. baily of his manor; adjudged a freehold. H. 37 El. Butler and Ridgely. vid. 1 Rep. Bredon's case. Rent granted to A. for life if B. or C. shall so long live. But if there be an estate with such conditional limitation it ought to be pleaded with the limitations, and con-tinuance shall be averred; for otherwise it fails. Vid. Dy. 192. (p) 1. To which the Annotator subjoins from Hal MSS. But feoffment to the use of A. for life, remainder to the use of B. his executors and assigns, till ten pounds shall be levied out of the profits, ruled to be a chattel. 2. But, continues Lord Coke if a man grant a rent of 201. per annum until 100%. be paid, there he hath an estate for five years, for there it is certain, and depends upon no uncertainty. And yet in some cases a man shall have an incertain interest in lands or tenements, and yet neither an estate for life, for years, or at will. (Lord Hale subjoins, Plowd. Comm. 273.) As if a man, by his will in writing, devise his lands to his executors for payment of debts, and until his debts be paid; in this case the executors have but a chattel, and an incertain interest in the land until his debts be paid; for if they should have it for their lives, then by their death their estate should cease, and the debts unpaid; but being a chattel, it shall go to the executors of executors for the payment of his debts; and so, he concludes, note a diversity between a devise and a conveyance at the common law in his life-time. (g) 1. And, albeit, says Lord Coke, an estate for term of a man's own life be but one freehold, yet may several freeholds, in certain cases be derived out of the same. As if tenant for life maketh a lease by deed or without deed to him in the remainder, or reversion in tail or in fee, for the term of the life of him in the remainder or reversion, and after he in the remainder taketh wife and dieth, his wife shall not be endowed, for tenant for life shall enjoy the land again; for forfeiture it cannot be, for he in the remainder was party; and surrender it cannot be, for that his whole estate was not given. Co. Litt. 42. a.-2. And the Annotator subjoins from Hal. MSS. 1 E. 3. 15. Vid. 41 Ass. 2. A. tenant for life, remainder to So his life is greater than another's life: and therefore, if he leases (r) to him in remainder or reversion for his life; he shall have it after the death of the lessee: for it was not a surrender. Co. L. 42. a. lease to him in reverCo. L. 42. a. Co. L. 42. a. So, if tenant for life takes husband, and they sion or remainder for the life of the husband. And upon such lease a rent may be reserved. So, if tenant for life and he in reversion join (s) in a lease for life, they B in tail, remainder to C. in fee: A. enfeoffs B. and his wife, and their heirs; B. dies without issue; now there is a forfeiture and C. may enter. (r) 1. Tenant for life can make no leases to continue longer than his own life; for his leases are absolutely void at his death. Bac. Abr. Leases, I. — 2. Thus where tenant for life leases premises for twenty-one years, and before the expiration of that term died, and the trustees of the remainder-man, then an infant, continued to receive the rent reserved, and he, on coming of age, sold the premises by auction, and in the conditions of sale the premises were declared to be subject to the lease, and in the conveyance to the purchaser, the lease was referred to as in the possession of the lessee, and, in the covenant against incumbrances, that lease was excepted, and the purchaser mortgaged, and, in the mortgage deeds, the like notice was taken of the lease, and the mortgagee for some time received the rent reserved; it was held, that the lease expired with the interest of the tenant for life, and that the notice since taken of it did not operate as a new lease. 1 B. & P. 531. —3. Hence, too, a lease so rendered void against him in remainder, cannot be set up in a court of law by such remainder man's acceptance of rent, and suffering the tenant to make improvements after his interest vests in possession. Dougl. 50. Cowp. 482. B. N. P. 96. 7 T. R. 83. 478. 3 Atk. 393. -4. Where, however, a remainder man lies by, and suffers the lessee or assignee to rebuild, and does not by his answer deny that he had notice of it; all these circumstances taken together will bind him in a court of equity from controverting the lease afterwards. Woodf. L. & T. 39. (s) 1. A lease executed by a tenant for life, in which the reversioner, who was then under age, is named, but which he does not execute, is void on the death of the tenant for life, and an execution by the reversioner afterwards is no confirmation of it. 1 T. R. 86.-2. But if tenant for life makes a lease for twenty years generally, and afterwards he in reversion confirms that lease, and then the tenant for life dies; though this at first would have determined by the death of the lessor, yet the confirmation hath made it good for the whole term. Bac. Abr. Leases, L. 2. 3. But if the lease had been for twenty years, if the lessor tenant for life should so long live; there if the reversioner had confirmed the lease, yet would it not prevent its voidance upon the death of the tenant for life.-4. The diversity between which cases is this; that in the first case, the lease being made generally for twenty years, nothing appears to the contrary, but that it was a good lease for that time absolutely; for the death of the lessor, which would determine it sooner, does not appear in the lease itself; then when the reversioner who alone could take advantage of that implied condition, thinks fit to name it, and confirms the lease as it was made at first for twenty years absolutely, this makes it his own lease, for so much of the time as would have fallen into his reversion by the death of the tenant for life being made the express limitation and circumscription of the twenty years in the lease itself, no confirmation of that lease so limited can enlarge it to extend beyond the life of the lessor, that being the express determination affixed to it. For although we find one case, where it is held, that if a man makes a lease for twenty-one years, if the lessee so long live, and afterwards the lessor and lessee join in a grant by deed of the term to another, after which the first lessee dies within the twenty-one years, yet the grantee shall enjoy it during the residue of the term absolutely: To reconcile this case with the other, it must be intended, that in the assignment no notice is taken of the express limitation affixed to the lease, but that they joined in an assignment of the lease for the residue of the twenty-one years, and then it may be well construed to amount to a confirmation by the lessor for that time, as the lessor may confirm the land to the lessee for any longer time, and thereby enlarge his estate or interest. Bac. Abr. Leases, L. 2.-5. B. tenant for the life of C. and he in remainder or reversion in fee, join in a lease for years by indenture; this during the life of C. is the lease of B. who then only had the present interest in the lands, and the confirmation of him in remainder or reversion. But after the death of C., then this becomes the lease of him in the reversion or remainder, and the confirmation of B For |